X v Y Ltd

In X v Y Ltd EAT/0261/17, the EAT held that an email containing legal advice on how to disguise a discriminatory dismissal as a redundancy is not protected by legal advice privilege and is admissible as evidence in a tribunal.

Y Ltd is appealing the EAT decision. The Court of Appeal is due to hear the appeal on 2 October 2019.

Kostal UK Ltd is appealing the EAT decision to the Court of Appeal. The Court of Appeal is due to hear the appeal on 22 or 23 May 2019.

Bellman v Northampton Recruitment Ltd

vicarious liability | assault | Christmas party

In Bellman v Northampton Recruitment Ltd [2017] IRLR 124 HC, the High Court held that an employer was not vicariously liable for a managing director's "brutal assault" of an employee during a drinking session after the employer's Christmas party. In the Court's view, there was an insufficient connection between the position in which the director was employed and the assault to make it right for his employer to be vicariously liable.

Mr Bellman appealed to the Court of Appeal against the High Court's decision. In Bellman v Northampton Recruitment Ltd [2019] IRLR 66 CA, the Court of Appeal disagreed with the High Court's conclusions about the context and circumstances of the assault. The Court found that, although the party and the drinking session were not a single seamless event and attendance was voluntary, the director was "not merely a fellow reveller" as he was present as managing director of the company. The Court of Appeal held that, in all the circumstances, there is sufficient connection between the director's field of activities and the assault to render it just that the company should be vicariously liable for the managing director's actions.

This means that they are entitled to receive basic worker rights such as the national minimum wage and paid annual leave.

Uber appealed to the EAT against the first-instance decision. The EAT heard the appeal on 27 and 28 September 2017 and delivered its decision on 10 November 2017. In Uber BV and others v Aslam and others [2018] IRLR 97 EAT, the EAT agreed with the tribunal that Uber drivers are workers and dismissed the appeal.

Uber sought permission to appeal the EAT decision directly to the Supreme Court (bypassing the Court of Appeal), but the Supreme Court refused the application. The Court of Appeal heard Uber's appeal in October 2018. On 19 December 2018, the Court of Appeal delivered its decision and dismissed the appeal in Uber BV and others v Aslam and others [2018] EWCA Civ 2748 CA. However, the Court of Appeal has given Uber permission to appeal its decision to the Supreme Court.

Williams v Trustees of Swansea University Pension and Assurance Scheme and another

In Swansea University Pension & Assurance Scheme (The Trustees of) and another v Williams [2015] IRLR 885 EAT, the EAT held that a disabled employee, whose working hours had been reduced to accommodate his disability, did not suffer disability discrimination when his ill-health retirement pension was based on his part-time hours. The EAT found that, in comparison with a non-disabled person, who is normally entitled to a pension at 67, an ill-health retiree is actually being treated favourably by getting a pension before he or she reaches 67.

López Ribalda and others v Spain

human rights | CCTV surveillance | privacy

In López Ribalda and others v Spain [2018] IRLR 358 ECHR, the European Court of Human Rights (ECHR) held that the right to privacy of Spanish shop workers (art.8 of the European Convention on Human Rights) had been breached when a supermarket installed hidden cameras without their knowledge to monitor employee thefts.

On 28 May 2018, the Grand Chamber Panel accepted the Spanish Government's request that the case be
referred to the Grand Chamber of the ECHR. The Grand Chamber heard the case on 28 November 2018 and will deliver its ruling in due course.

Ali v Capita Customer Management Ltd

sex discrimination | shared parental leave | enhanced pay

In Ali v Capita Customer Management Ltd ET/1800990/2016, an employment tribunal held that it was direct sex discrimination for a new father whose wife had post-natal depression to be allowed to take only two weeks' leave on full pay, when female staff were entitled to 14 weeks' enhanced maternity leave.

The tribunal held that, while Mr Ali was not less favourably treated in the first two weeks because he also got full pay, in the subsequent 12 week-period he was denied the benefit of full pay, which would have been given to a hypothetical female caring for her child. He was denied that benefit and deterred from taking the leave, and was less favourably treated because of his sex.

Capita appealed to the EAT against the first-instance decision. In Capita Customer Management Ltd v Ali [2018] IRLR 586 EAT, the EAT allowed the appeal and set aside the tribunal finding of sex discrimination. In the EAT's view, the purpose of maternity leave is to assist the health of the mother, with the care of a child provided for under the Parental Leave Directive (2010/18/EC), which does not provide for paid leave. Having made these conclusions, the EAT considered that an appropriate hypothetical female comparator for Mr Ali is an employee caring for her child, and the relevant leave to be considered would be shared parental leave, not maternity leave. The EAT held that Mr Ali was not discriminated against on the grounds of sex by being entitled to shared parental leave at the pay rate appropriate for such leave.

The Court of Appeal will hear Mr Ali's appeal against the EAT decision on 1 May 2019.

Hextall v Chief Constable of Leicestershire Police

In Hextall v Chief Constable of Leicestershire Police ET/2601223/2015, an employment tribunal held that there was no discrimination against a man on shared parental leave who received only statutory shared parental pay, where the employer paid enhanced maternity pay. The tribunal found that a woman on shared parental leave who was the same-sex partner of a woman who had just given birth would be treated in exactly the same way.

Mr Hextall appealed to the EAT against the first-instance decision. In Hextall v Chief Constable of Leicestershire Police [2018] IRLR 605 EAT, the EAT held that the tribunal had erred in its approach to the claim for indirect discrimination. The EAT allowed the appeal and remitted the claim for a rehearing before a differently constituted employment tribunal.

The Chief Constable of Leicestershire Police is appealing the EAT decision to the Court of Appeal. The Court of Appeal will hear the appeal on 1 May 2019.

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another t/a Clifton House Residential Home

The Court of Appeal held that sleep-in shifts do not count as "time work" for the purposes of the national minimum wage legislation.

Ms Tomlinson-Blake, supported by Unison, is seeking leave to appeal the Court of Appeal's decision to the Supreme Court.

Royal Mail Ltd v Jhuti

whistleblowing | protected disclosure | automatic unfair dismissal

In Royal Mail Ltd v Jhuti [2018] IRLR 251 CA, the Court of Appeal held that a claimant cannot succeed in a whistleblowing unfair dismissal claim where the decision-maker was unaware of the protected disclosure at the time of the decision to dismiss.

Ms Jhuti sought leave to appeal the decision to the Supreme Court and permission to appeal was granted on 19 March 2018. The Supreme Court will set a date to hear the appeal in due course.

Tillman v Egon Zehnder Ltd

restrictive covenants | non-compete clauses | restraint of trade

In Tillman v Egon Zehnder Ltd [2017] IRLR 906 CA, the Court of Appeal held that a six-month non-compete clause that prevented the employee from being "concerned or interested in any business carried on in competition" after termination of employment was unenforceable as it would bar her from being a shareholder in a competing business.

Egon Zehnder is appealing the decision to the Supreme Court. The Supreme Court will hear the appeal on 21 and 22 January 2019.

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